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In Westendorf v. West Coast Contractors of Nevada, the Ninth Circuit held that an employee’s retaliation claim survived summary judgment despite the dismissal of her sexual harassment claim under Title VII of the Civil Rights Act. Employers should be aware that even when an employee’s harassment claim is unfounded, a retaliation claim may linger.

Facts

Plaintiff Jennifer Westendorf was employed as a project manager assistant at West Coast Contractors (“Company”), a Nevada corporation. Several months after she started working for the Company, Westendorf was assigned to work one day a week, for approximately three months, at a construction site where another employee, Patrick Ellis, was the superintendent. Throughout this period, Ellis allegedly made offensive sexual comments to Westendorf in front of her supervisor, Dan Joslyn, who failed to discipline Ellis or instruct him to stop. Ellis reportedly made comments to her about another worker’s breasts, asked her to clean the office in a French maid’s uniform, and criticized and belittled her. Westendorf alleged that on several occasions, Joslyn also made similar comments and/or laughed at Ellis’ remarks.

Westendorf complained to the Company’s president, Mario Ramirez several times. Ramirez investigated her allegations and ultimately warned Joslyn and Ellis that if they continued to make inappropriate comments and jokes, they would face discipline, up to and including termination. Ramirez also withheld Ellis’ bonus as punishment for his behavior.

Later, while Ramirez was away on vacation, Joslyn allegedly became critical and short-tempered with Westendorf. When Ramirez returned, Westendorf complained to him about Joslyn’s treatment of her including the fact that he had asked her to do demeaning tasks like placing paper in binders and was disrespectful to her when she refused. She also told Ramirez that she no longer wanted to work under Joslyn. Ramirez informed Westendorf that she needed to follow Joslyn’s instructions and allegedly told her “he was tired of listening to all this and that obviously [she] had a problem getting along with [Joslyn] and that it would be best if [she] got [her] personal items and left.” Ramirez and two other employees then escorted Westendorf from the building. Westendorf claimed she was terminated; Ramirez alleged that Westendorf resigned.

Thereafter, Westendorf sued the Company for sexual harassment, gender discrimination and retaliatory discharge. The district court granted the employer’s motion for summary judgment and Westendorf appealed as to her claims for harassment and retaliation.

Court of Appeals

The Ninth Circuit affirmed the district court’s ruling with respect to the sexual harassment claim. The court found that the conduct did not rise to the level of extreme conduct that was so severe and pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive. The court based its decision in part on the fact Westendorf went to Ellis’s workplace only once a week for three months and often did not stay an entire day. The court noted that Westendorf could point to only four occasions when Ellis made sexually explicit comments. The court was also persuaded by the fact that Westendorf did not say that her work suffered because of the sporadic comments and that the harassment was not physical in nature.

However, the Ninth Circuit reversed the District Court’s ruling with respect to the retaliation claim. To present a claim for retaliation, an employee must show she engaged in protected activity, suffered a materially adverse action, and a causal connection between the two. The Ninth Circuit found that even though the evidence did not support Westendorf’s sexual harassment claim, the evidence did provide grounds for Westendorf to form a reasonable belief that she was subjected to actionable sexual harassment, and that she in fact had such a belief. Under these circumstances, the court found that her conduct, in reporting the alleged harassment, would be protected activity—one of the requirements for a retaliation claim—even though she ultimately did not have an actionable harassment claim.

What Employers Should Take Away from Westendorf

This case illustrates how a weak harassment claim can be transformed into a formidable retaliation lawsuit and highlights an important distinction: to present a claim for retaliation, the employee need only show a good faith complaint about harassment—not that the conduct actually constituted actionable sexual harassment. In this case, the proximity of the harassment claims and the subsequent adverse employment action, as well as the dispute regarding whether Westendorf was fired or quit, allowed the case to survive summary adjudication. Thus, employer’s considering taking adverse employment actions (termination, suspension, demotions, transfer, etc.) against employees who have previously made claims regarding harassment or discrimination should consult with counsel to determine the risks and mitigate liability—even where the harassment or discrimination claim is unfounded.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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